25 April 2013

ARTICLE: Licari on Rabbinical Arbitration

Member François-Xavier Licari (Lorraine) has made his 'L'ARBITRAGE RABBINIQUE, ENTRE DROIT TALMUDIQUE ET DROIT DES NATIONS (RABBINIC ARBITRATION, BETWEEN TALMUDIC LAW AND THE LAW OF THE GENTILES' available on SSRN. The abstract reads:Rabbinical arbitration has existed for two thousand years, but remains
largely unknown. After a long period of decline which lasted until the middle of
the twentieth century, it is now in widespread use, and is participating in a
renaissance of confessional arbitration throughout the world. Even though it
applies fundamental mechanisms which are familiar to us, it is singular in
several respects, the most significant being that rabbinical arbitration is not
a form of alternative dispute resolution. For members of a Jewish community, it
is – or should be – the principal mode of dispute resolution since, in
principle, recourse to secular courts is prohibited by Talmudic law. Our study
will start with the very nature and scope of this prohibition. Certain aspects
of procedure before rabbinical tribunals also merit close examination. After
having explored arbitration from an "internal" perspective, i.e. from Talmudic
sources, we will examine this from an "external" viewpoint, i.e. from that of
the law of nations, in other words the national legal system into which it must
be inserted. Such insertion is not straighforward, since even though Talmudic
law and the law of nations diverge in many respects by reason of their radically
different nature (one is revealed, the other is contingent), in other respects
they appear to be on a head-on collision course (witness evidence from women,
inheritance rights in particular). This therefore raises questions as to the
recognition and enforcement of rabbinical arbitral awards, and on the role of
public policy in this respect.The article was just published in (2013) Revue de l'arbitrage57.